Connecticut case could draw justices into recess appointment fight

2/4/13 1:45 PM EST

A labor dispute in Connecticut could become a vehicle for the Supreme Court to be dragged into the controversy over whether President Barack Obama violated the Constitution by naming three members to the National Labor Relations Board last January when the Senate claimed not to be in recess.

HealthBridge Management, an operator of nursing homes and rehabilitation hospitals, filed an application Monday asking Justice Ruth Bader Ginsburg to stay an order the NLRB obtained from a district court judge in December requiring the firm to rehire 700 employees involved in a labor dispute at several of the company's nursing homes in Connecticut. The application (posted here) cites the D.C. Circuit's ruling last month rejecting the recess appointments and argues that the rehiring order should be halted until the validity of the NLRB's authority to act is definitively resolved.

Ginsburg denied the application Monday afternoon, a court spokesman said. She offered no explanation for her decision.

HealthBridge, which has retained leading Supreme Court litigator Paul Clement, said through a spokesman late Monday that the firm plans to resbumit its stay application to Justice Antonin Scalia. He may be more receptive to some of the arguments Clement has marshaled.

"There is a substantial likelihood not only that this Court will be called upon to resolve this pressing question in the months ahead, but that upon doing so, the Court will resolve it by adopting HealthBridge’s position," the firm said in its first stay application filed Monday morning.

The HealthBridge employees involved in the labor fight are represented by the Service Employees International Union.

"We expected HealthBridge to resist justice for its employees," the SEIU's David Pickus said in a statement. "But the company’s decision to petition the Supreme Court made it clear just how far they are willing to go—and how many public resources they are willing to waste—just to keep these dedicated caregivers from returning to the jobs they love. We are pleased that Justice Ginsburg wasted no time in denying the company’s request so that these workers can get back on the job, where they belong.”

A Second Circuit panel halted U.S. District Court Judge Robert Chatigny's order for a few weeks, but dissolved the stay last week. HealthBridge raised the issue of the disputed recess appointments in both courts below. However, it is not clear whether either court considered it. It may not be much of an argument in the Second Circuit, since back in 1962, a panel of that appeals court upheld broad recess appointment powers. That decision still controls in federal courts in Connecticut, New York and Vermont.

Also on HealthBridge's application: Rosemary Alito, sister of Justice Samuel Alito. That means it's likely the court will have to resolve the issue without Alito's input.

The firm's application puts some SCOTUS-watcher language into an official filing, dropping the term "cert-worthy" while asserting that the case "presents three related but independently cert-worthy questions."

The application was filed first with Ginsburg because she is assigned by the court to handle stay requests and other emergency matters arising from the Second Circuit.

UPDATE (Monday, 5:10 P.M.): This post has been updated with Ginsburg's denial of the firm's application.

UPDATE (Monday, 6:11 P.M.): This post has been updated with comment from Pickus.

UPDATE (Monday, 7:06 P.M.): This post has been updated with HealthBridge's statement that it will resubmit its stay application to Justice Scalia.